September 28, 2011

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For the second time in three months, California prisoners are using their lives as bargaining chips. This July, beginning with the Secure Housing Unit (SHU) at Pelican Bay State Prison in Northern California, as many as 6,600 inmates at thirteen prisons underwent a three-week hunger strike to protest the state’s use of “supermax” facilities designed for long-term solitary confinement. The strike ended on July 20 when inmates received as concessions winter beanies, wall calendars and the promise of “some educational opportunities.” But their larger, more basic demands—more humane living conditions and a feasible exit strategy from solitary besides “parole, snitch or die”—went unmet. As a result, on the morning of September 26, the hunger strike resumed at Pelican Bay. “We have been quietly held in Pelican Bay State Prison solitary confinement under some of the most horrible conditions known to man,” one SHU inmate wrote in a letter. “So we continue to struggle to be treated like decent human beings.”

It’s difficult to forecast whether the renewed strike will achieve more meaningful concessions this time around. Few details are available about the first strike, in large part because media were barred from entering California’s prisons at the time. The horrors of long-term solitary confinement have, however, been well documented. Left alone in windowless concrete cells for twenty-two and a half hours a day, prisoners become psychotic or catatonic and routinely mutilate themselves.

Prison officials make little effort to justify these conditions on a penological basis: in most cases, inmates are placed in supermax not for crimes committed on the outside but for suspected gang activity and other transgressions on the inside. As arbitrary as placement in supermax can be, prisoners have even less say when it comes to getting out. In Pelican Bay’s SHU, they must either prove they’ve maintained no contact with gangs for six years, “debrief” guards on gang activity in the facility—a risky proposition for any prisoner—or make parole, which could take years. Indeed, because of the difficulty of cutting all gang ties and the risk of “snitching,” most prisoners in SHU just wait to be paroled: of the 1,111 prisoners currently in SHU, 513 have lived there a decade or more.

An influential 2009 report by Atul Gawande in The New Yorker subtitled “Is Long-Term Solitary Confinement Torture?” strongly suggested it is, posing the additional question: “If prolonged isolation is…so objectively horrifying, so intrinsically cruel, how did we end up with a prison system that may subject more of our own citizens to it than any other country in history has?” Unfortunately for the 3,000 Californians and 25,000 others held in supermax facilities in the United States (as of 2006), the answer lies largely in the US Supreme Court’s narrow interpretation of the Constitution’s Eighth Amendment, which prohibits “cruel and unusual” punishment. If the largely invisible actions of California’s prisoners are to have any effect, they must be accompanied by a viable legal strategy to ban supermax conditions once and for all.

One approach would be to bring a lawsuit challenging the conditions of solitary confinement on Eighth Amendment grounds. But the Supreme Court has for the past two decades ruled that “cruel and unusual punishment” means wanton physical abuse—a definition that no court has yet to apply to solitary confinement. The Supreme Court isn’t likely to label prison conditions cruel and unusual unless it can be proved that prison officials showed reckless indifference to specific medical needs of inmates.

In the 1991 Supreme Court case Wilson v. Seiter, which dealt with prison conditions and overcrowding, Justice Antonin Scalia reversed a ten-year precedent with his majority opinion that a prison’s overall conditions, however bad, did not qualify as cruel and unusual if they were not explicitly designed to cause bodily harm. “Nothing so amorphous as ‘overall conditions,’ ” Scalia wrote in his opinion, “can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists.” As Vanderbilt professor of English and prison expert Colin Dayan notes in her short book, The Story of Cruel and Unusual, Scalia’s opinion “led to the reproduction of conditions that disfigure personhood and incapacitate prisoners—those amorphous abuses that have nothing to do with lighting, food, clothing, shelter, or medical care.” It also reassured states that they ran little risk of facing a successful legal challenge to the supermaxes they were feverishly building in that era.

The first high-profile case to argue against supermax confinement as an Eighth Amendment violation was brought in 1993, when several thousand prisoners filed a class action suit, Madrid v. Gomez, against Pelican Bay prison, opened four years earlier. Two years later, Federal District Court Judge Thelton Henderson—who more recently co-issued the order to cut California’s overcrowded prison population—concluded that Pelican Bay inmates were “at high risk for incurring serious psychiatric problems…if exposed to the SHU for any significant duration.” Henderson ruled that prisoners who were already mentally ill could not be sent to supermax, but—citing Wilson—kept the SHU open, finding that it did not meet “exacting” Eighth Amendment standards. Because the prison displayed no wanton intent to harm its prisoners, its treatment of them couldn’t be considered cruel and unusual. But Henderson did leave the door open for a future lawsuit, writing, “We can not begin to speculate on the impact that Pelican Bay SHU conditions may have on inmates confined in the SHU for periods of 10 or 20 years or more.” Today, many have undergone such long-term confinement.

“It is time to bring a second case,” says Chicago civil rights lawyer Alan Mills, “now that there’s better medical evidence” on the psychological effects of solitary confinement. UCLA law professor Sharon Dolovich agrees, adding that there is no legal reason supermax conditions couldn’t be ruled unconstitutional based on the medical risk incurred by the absence of interpersonal contact and sensory stimulation, which lead to serious medical risk. The real problem, she notes, is that “you’ve got state legislatures that have invested millions and millions of dollars in supermax. For a court to say they’re at odds with the Eighth Amendment would challenge and even undermine some basic theories of prison management.” Since the passage of the Prison Litigation Reform Act in 1996, which limited the courts’ ability to challenge prisons’ authority, deference to prison officials has been the norm. Courts have been reluctant to tell states how to run their prisons.

Another legal strategy, which has garnered some recent success, has been to invoke prisoners’ Fourteenth Amendment right to due process. In 2005, the Supreme Court ruled unanimously in Wilkinson v. Austin that Ohio’s supermax facility could exist as long as prisoners were told why they were being confined and given the right to appeal their cases. But the decision didn’t have teeth. Though Wilkinson afforded prisoners a “rebuttal” to their punishment, it did not give them a right to a lawyer or witnesses. Yet, as with the Madrid decision, the ruling in Wilkinson left the door open for future challenges based on the lack of due process in decisions to send prisoners to supermax facilities. A 2010 decision in Illinois resulted in the successful appeal by several prisoners at Tamms Supermax to be released from solitary.

A final way to take on supermax confinement is to target lawmakers. State legislatures fund all but one of the at least forty-four estimated supermax prisons in the United States. (There is no uniform definition of “supermax,” which leads to disagreement over exactly how many exist.) This year, a harrowing report commissioned by the Maine legislature led to a 50 percent reduction in the state’s supermax population. In 2009, Mississippi, with the help of an outside corrections guru, cut its supermax population by 90 percent, saving the state an estimated $8 million. Fiscal arguments can be a good way to convince lawmakers to change course: depending on the state, housing a supermax prisoner costs two to three times more than housing one in the general population. There’s a public safety argument too: prisoners who go from solitary confinement back into civilian life are more likely to reoffend. According to a study by Keramet Reiter, a PhD candidate in jurisprudence and social policy at Berkeley, the recidivism rate at Pelican Bay is 62 percent for SHU prisoners, compared with 46 percent for everybody else.

But as with any sentencing reform, lawmakers know that it is politically risky to appear soft on crime, and prison employee unions exert a lot of power in some states. Last year, the California Correctional Peace Officers Association spent more than $1 million on both Republican and Democratic candidates. There’s also an argument to be made that supermax facilities have done their job: in 1989, prisoner-on-prisoner violence in the general population of two tough new California prisons, one of which was Pelican Bay, accounted for 35 percent of the state total. By 2006 at those two prisons, both of which are equipped with supermax facilities, that number was down to 5 percent. Supermax proponents point to such evidence to make the case that prisons become safer when dangerous gang members are segregated from their fellow inmates.

As the Pelican Bay inmates begin their strike anew, increased media attention and demonstrations of solidarity will not be enough to reform a method of incarceration that prisons deem crucial and courts have thus far ruled constitutional. So if there is any cause for optimism, it comes from the 5-4 Supreme Court ruling earlier this year in Brown v. Plata, which ordered California to reduce overcrowding in its prisons on Eighth Amendment grounds. Justice Anthony Kennedy’s impassioned testimony and deciding swing vote suggested that he is open to a reasonably broad definition of cruel and unusual punishment. Kennedy’s vote, which surprised legal experts, could be the difference-maker if a challenge to long-term solitary confinement ever reaches the Supreme Court.